EXHIBIT-99.B15(c)
[Letterhead of Merrimac Series]
Shareholder Servicing Agreement
(Institutional Class)
Boston, Massachusetts
Gentlemen:
We are hereby inviting you, subject to the terms and conditions set
forth below, to serve as the agent of your customers ("Customers") for purposes
of performing certain administrative functions in connection with purchases and
redemptions of Institutional Class shares of beneficial interest ("Shares") of
Merrimac Series (the "Trust") from time to time upon the order and for the
account of Customers, and to provide related services to your Customers in
connection with their investments in the Trust.
1. Appointment. You hereby agree to perform certain services for
Customers as hereinafter set forth. Your appointment hereunder is non-exclusive,
and the parties recognize and agree that, from time to time, the Trust may enter
into other shareholder servicing agreements, with other financial institutions.
2. Services to be Performed. You shall be responsible for performing
shareholder account administrative and servicing functions, which shall include,
without limitation, one or more of the following activities: (a) answering
Customer inquiries regarding account status and history, the manner in which
purchases and redemptions of the Shares may be effected, and certain other
matters pertaining to the Trust; (b) assisting Customers in designating and
changing dividend options, account designations and addresses; (c) providing
necessary personnel and facilities to establish and maintain certain shareholder
accounts and records, as requested from time to time by the Trust; (d) assisting
in processing purchase and redemption transactions; (e) arranging for the wiring
of funds; (f) transmitting and receiving funds in connection with Customer
orders to purchase or redeem Shares; (g) verifying and guaranteeing Customer
signatures in connection with redemption orders, transfers among and changes in
Customer-designated accounts; (h) providing periodic statements showing a
Customer's account balances and, to the extent practicable, integration of such
information with other client transactions otherwise effected with or through
you; (i) furnishing (either separately or on an integrated basis with other
reports sent to a Customer by you) monthly and annual statements and
confirmations of all purchases and redemptions of Shares in a Customer's
account; (j) transmitting proxy statements, annual reports, prospectuses and
other communications from the Trust to Customers; (k) receiving, tabulating and
transmitting to the Trust proxies executed by Customers with respect to special
meetings of shareholders of the Trust; and (l) providing such other related
services as the Trust or a Customer may reasonably request. You shall provide
all personnel and facilities necessary in order for you to perform one or more
of the functions described in this paragraph with respect to your Customers. You
shall exercise reasonable care in performing all such services and shall be
liable for any failure to
exercise such reasonable care.
3. Fees.
3.1. Fees from the Trust. In consideration for the services
described in section 2 hereof and the incurring of expenses in connection
therewith, you shall receive fees at an annual rate of 0.25% of the average
daily value of all Shares owned by or for all Customers with whom you maintain a
servicing relationship, such fee to be paid in arrears at the end of each
calendar quarter.
3.2. Fees from Customers. It is agreed that you may impose
certain conditions on Customers, in addition to or different from those imposed
by the Trust, such as requiring a minimum initial investment or charging
Customers direct fees for the same or similar services as are provided hereunder
by you (which fees may either relate specifically to your services with respect
to the Trust or generally cover services not limited to those with respect to
the Trust). You shall ▇▇▇▇ Customers directly for such fees. In the event you
charge Customers such fees, you shall make appropriate prior written disclosure
(such disclosure to be in accordance with all applicable laws) to Customers both
of any direct fees charged to the Customer and of the fees received or to be
received by you from the Trust pursuant to section 3.1 of this Agreement. It is
understood, however, that in no event shall you have recourse or access to the
account of any shareholder of the Trust except to the extent expressly
authorized by law or by the Trust or by such shareholder for payment of any
direct fees referred to in this section 3.2.
4. Capacity and Authority to Act. You and your officers, employees and
agents are not authorized to make any representations concerning the Trust or
the Shares to Customers or prospective Customers, excepting only accurate
communication of factual information contained in the then-current prospectus
and statement of additional information or such other communications as may be
expressly authorized by the Trust. In performing your services under this
Agreement, you shall act as agent for the Customer and shall have no authority
to act as agent for the Trust. Upon request by the Trust, you shall provide the
Trust with copies of any materials which are generally circulated by you to your
Customers or prospective Customers.
5. Use of the Agent's Name. The Trust shall not use your name in any
prospectus, sales literature or other material relating to the Trust in a manner
not approved by you prior thereto in writing; provided, however, that your
approval shall not be required for any use of its name which merely refers
accurately to your appointment hereunder or which is required by the Securities
and Exchange Commission or any state securities authority or any other
appropriate regulatory, governmental or judicial authority; provided, further,
that in no event shall such approval be unreasonably withheld or delayed.
6. Use of the Trust's Name. You shall not use the name of the Trust
(other than for internal use in connection with performing its duties under this
agreement) in a manner not approved by the Trust prior thereto in writing;
provided, however, that the approval of the Trust shall not be required for the
use of the Trust's name in connection with communications permitted by section 4
hereof or for any use of the Trust's name which merely refers accurately to your
role hereunder or which is required by the Securities and Exchange Commission or
any state securities authority or any other appropriate regulatory, governmental
or judicial authority; provided, further, that in no event shall such approval
be unreasonably withheld or delayed.
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7. Security. You represent and warrant that, to the best of your
knowledge, the various procedures and systems which you have implemented
(including provision for twenty-four hours a day restricted access) with regard
to safeguarding from loss or damage attributable to fire, theft or any other
cause the Trust's records and other data and your records, data, equipment,
facilities and other property used in the performance of your obligations
hereunder are adequate and that you will make such changes therein from time to
time as in its judgment are required for the secure performance of your
obligations hereunder. The parties shall review such systems and procedures on a
periodic basis, and the Trust may from time to time specify the types of records
and other data of the Trust to be safeguarded in accordance with this section 7.
8. Compliance with Laws; Etc. You shall comply with all applicable
federal and state laws and regulations, including securities laws. You hereby
agree to maintain all records required by law relating to transactions on the
Shares, and upon our request, or of the Trust, promptly make such of these
records available to us or the Trust's administrator as are requested. In
addition, you hereby agree to establish appropriate procedures and reporting
forms and/or mechanisms and schedules in conjunction with us and the Trust's
administrator, to enable the Trust to identify the location, type of, and sales
to all accounts opened and maintained by your customers or by you on behalf of
your customers. You represent and warrant to the Trust that the performance of
all its obligations hereunder will comply with all applicable laws and
regulations, the provisions of your charter documents and by-laws and all
material contractual obligations binding upon you. You furthermore undertake
that you will promptly inform the Trust of any change in applicable laws or
regulations (or interpretations thereof) or in your charter or by-laws or
material contracts which would prevent or impair full performance of any of your
obligations hereunder.
9. Reports. To the extent requested by the Trust from time to time, you
agree that you will provide the Trust with a written report of the amounts
expended by you pursuant to this Agreement and the purposes for which such
expenditures were made. Such written reports shall be in a form satisfactory to
the Trust and shall supply all information necessary for the Trust to discharge
its responsibilities under applicable laws and regulations.
10. Record Keeping.
10.1. Section 31(a), Etc. You shall maintain records in a form
acceptable to the Trust and in compliance with applicable laws and the rules and
regulations of the Securities and Exchange Commission, including but not limited
to the record-keeping requirements of section 31(a) of the Investment Company
▇▇▇ ▇▇▇▇, as amended (the "1940 Act"), and the rules thereunder. Such records
shall be deemed to be the property of the Trust and will be made available, at
the Trust's reasonable request, for inspection and use by the Trust,
representatives of the Trust and governmental authorities. You agree that, for
so long as you retain any records of the Trust, you will meet all reporting
requirements pursuant to the 1940 Act with respect to such records.
10.2. Transfer of Customer Data. In the event this Agreement
is terminated or a successor to you is appointed, you shall, at the expense of
the Trust, transfer to such designee as the Trust may direct a certified list of
the shareholders of the Trust serviced by you (with name, address and tax
identification or Social Security number), a complete record of the account of
each such shareholder and the status thereof, and all other relevant books,
records, correspondence and other data established or maintained by you under
this Agreement. In the event this Agreement is terminated, you
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will use your best efforts to cooperate in the orderly transfer of such duties
and responsibilities, including assistance in the establishment of books,
records and other data by the successor.
10.3. Survival of Record-Keeping Obligations. The
record-keeping obligations imposed in this section 10 shall survive the
termination of this Agreement.
11. Force Majeure. You shall not be liable or responsible for delays or
errors by reason of circumstances beyond your control, including, but not
limited to, acts of civil or military authority, national emergencies, labor
difficulties, fire, mechanical breakdown, flood or catastrophe, Acts of God,
insurrection, war, riots or failure of communication or power supply.
12. Indemnification.
12.1. Indemnification of the Agent. The Trust shall indemnify
and hold you harmless from and against any and all losses, claims, damages,
liabilities and expenses incurred by you and resulting from any claim, demand,
action or suit (collectively, "Claims") brought against you and arising out of
or in connection with the performance of your obligations hereunder, other than
any Claim resulting from (i) the bad faith or negligence of you, your officers,
employees or agents, or (ii) any breach of your obligation under this Agreement
or applicable law by you, your officers, employees or agents, or (iii) any false
or misleading statement contained in any communication by you to any Customer or
prospective Customer not prepared by or expressly authorized by the Trust for
your use.
In any case in which the Trust may be asked to indemnify or hold you
harmless, the Trust shall be advised of all pertinent facts concerning the
situation in question and you shall use reasonable care to identify and notify
the Trust promptly concerning any situation which presents or appears likely to
present a claim for indemnification against the Trust. The Trust shall have the
option to defend you against any Claim which may be the subject of
indemnification hereunder. In the event that the Trust elects to defend against
such claim the defense shall be conducted by counsel chosen by the Trust and
satisfactory to you. You may retain additional counsel at its expense. Except
with the prior written consent of the Trust, you shall not confess any Claim or
make any compromise in any case in which the Trust will be asked to indemnify
you.
12.2. Indemnification of the Trust. You shall indemnify and
hold the Trust harmless from and against any and all losses, claims, damages,
liabilities and expenses incurred by the Trust and resulting from any Claim
brought against the Trust and resulting from (i) the bad faith or negligence of
you, your officers, employees or agents, or (ii) any breach of your obligations
under this Agreement or applicable law by you, your officers, employees or
agents, or (iii) any false or misleading statement contained in any
communication by you to any Customer or prospective Customer not prepared by or
expressly authorized by the Trust for your use.
In any case in which you may be asked to indemnify or hold the Trust
harmless, you shall be advised of all pertinent facts concerning the situation
in question and the Trust shall use reasonable care to identify and notify you
promptly concerning any situation which presents or appears likely to present a
claim for indemnification against you. You shall have the option to defend the
Trust against any Claim which may be the subject of indemnification hereunder.
In the event that you elect to defend against such Claim, the defense shall be
conducted by counsel chosen by you and satisfactory to the
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Trust. The Trust may retain additional counsel at its expense. Except with the
prior written consent of the agent, the Trust shall not confess any Claim or
make any compromise in any case in which you will be asked to indemnify the
Trust.
12.3. Survival of Indemnities. The indemnities granted by the
parties in this section 12 shall survive the termination of this Agreement.
13. Insurance. You shall maintain reasonable insurance coverage against
any and all liabilities which may arise in connection with the performance of
your duties hereunder. You shall provide information with respect to the extent
of such coverage upon our request.
14. Notices. All notices or other communications hereunder to either
party shall be in writing and shall be deemed sufficient if mailed to such party
at the address of such party set forth in this Agreement or at such other
address as such party may have designated by written notice to the other.
15. Further Assurances. Each party agrees to perform such further acts
and execute such further documents as are necessary to effectuate the purposes
hereof.
16. Termination. This Agreement may be terminated by the Trust, without
the payment of any penalty, at any time upon not more than 60 days' nor less
than 30 days' notice to you, by a vote of a majority of the Board of Trustees of
the Trust who are not "interested persons" of the Trust (as defined in the ▇▇▇▇
▇▇▇) and have no direct or indirect financial interest in the operation of the
Trust's Shareholder Servicing Plan (the "Plan"), this Agreement or any other
agreement related to such Plan, or by "a vote of a majority of the outstanding
voting securities" (as defined in the ▇▇▇▇ ▇▇▇) of the Trust. You may terminate
this Agreement upon not more than 60 days' nor less than 30 days' notice to the
Trust. Notwithstanding anything herein to the contrary, this Agreement may not
be assigned and shall terminate automatically without notice to either party
upon any assignment. Upon termination hereof, the Trust shall pay such
compensation as may be due you as of the date of such termination.
17. Changes; Amendments. This Agreement may be changed or amended only
by written instrument signed by both parties.
18. Limitation of Liability. The Master Trust Agreement dated March 30,
1998, as amended from time to time, establishing the Trust, which is hereby
referred to and a copy of which is on file at the offices of the Trust, provides
that the name of the Trust means the Trustees from time to time serving (as
Trustees but not personally) under said Master Trust Agreement. It is expressly
acknowledged and agreed that the obligations of the Trust hereunder shall not be
binding upon any of the shareholders, Trustees, officers, employees or agents of
the Trust, personally, but shall bind only the trust property of the Trust, as
provided in its Master Trust Agreement. The execution and delivery of this
Agreement have been authorized by the Trustees of the Trust and signed by an
officer of the Trust, acting as such, and neither such authorization by such
Trustees nor such execution and delivery by such officer shall be deemed to have
been made by any of them individually or to impose any liability on any of them
personally, but shall bind only the trust property of the Trust as provided in
its Master Trust Agreement.
19. Miscellaneous. This Agreement shall be construed and enforced in
accordance with
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and governed by the laws of The Commonwealth of Massachusetts without giving
effect to the conflicts of laws provisions thereof. The captions in this
Agreement are included for convenience of reference only and in no way define or
limit any of the provisions hereof or otherwise affect their construction or
effect. This Agreement has been executed on behalf of the Trust by the
undersigned not individually, but in the capacity indicated. This Agreement
shall be effective when accepted by you below.
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Please confirm your agreement hereto by signing and returning the
enclosed counterpart of this Agreement at once to: Merrimac Series, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President. Upon
receipt thereof, this Agreement and such signed duplicate copy will evidence the
agreement between us.
Merrimac Series
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer and Chief
Financial Officer
ACCEPTED:
Investors Bank & Trust Company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Dated: June 1, 1998
DOCSC\616351.1
3/31/98
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